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Collectio juris

Catherine Volpilhac-Auger

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1According to the abbé Guasco, Montesquieu used to say that “obliged by his father
to spend the day on the Code, he was so tired of it in
the evening that to amuse himself he would start writing a Persian letter and it
flowed from his pen without effort” (“obligé par son père de passer toute la
journée sur le Code, il s’en trouvait le soir si excédé,
que pour s’amuser, il se mettait à composer une lettre persane et que cela
coulait de sa plume, sans étude”, Lettres familières,
October 1752). Thus would be constituted the birth certificate of the Collectio juris (or “law anthology”), a collection or
work of formation, notes taken in the course of reading Roman law in depth,
which constitutes the very apprenticeship of his profession as jurist.
Montesquieu was destined for it by family vocation, from the time he was taken
to receive from his uncle Jean-Baptiste de Secondat, who had no descendants, the
charge of président à mortier in the parlement of
Guyenne. But the difficult entry into the mysteries of Roman law proves to be
much more important than what appears here in Montesquieu’s memories, or rather
in the legend that built up through the Lettres
familières. Without the Collectio juris,
Montesquieu would not have acquired the Latin and juridical culture that
constitutes the underpinnings of L’Esprit des lois; and
if we might regret not finding in it the very germs of the great work, it is
incontestable that it does give us the mould in which was formed a mind that
would never forget the lessons of Roman law – even when he contests or critiques
them.

2These six notebooks now held by the Bibliothèque Nationale de France, acquired in
1939, have been published for the first time by Iris Cox and Andrew Lewis in
2005 (the present article borrows much from their introduction). They were
written for the most part during Montesquieu’s stay in Paris between 1709 and
1711. Having taken stock of the weakness of the teaching of law in Bordeaux, he
felt the necessity of a more serious foundation (though it was not required by
the difficulty of the entrance exam, which was a mere formality). Roman law then
held capital importance: it was the “written law” (droit
écrit) in France, dominant in part of the country (notably the south),
though the partition between written and common law was not really explicit, so
it could be applied in many cases in the role of “suppletory” law (droit supplétif). The complexity of the situation is
touched upon in L’Esprit des lois: “Although common law
is regarded in our country as containing a sort of opposition to Roman law, so
that these two laws divide the territories, yet it is true that several
dispositions of Roman law have entered our common law, especially when new
versions of them were composed […]” (“Quoique le droit coutumier soit regardé
parmi nous comme contenant une espèce d’opposition avec le droit romain, de
sorte que ces deux droits divisent les territoires, il est pourtant vrai que
plusieurs dispositions du droit romain sont entrées dans nos coutumes, surtout
lorsqu’on en fit de nouvelles rédactions […]”, XXVIII, 45). What is the
particular case of the Guyenne parlement, where Montesquieu was to practice?
“The parlement of Bordeaux will always refuse to allow itself to be counted
among the parlements of written law, on the grounds that it applies Roman law
only in instances where the common law is silent.” (“Le parlement de Bordeaux
refusera toujours de se laisser compter parmi les parlements de droit écrit
motif pris de ce qu’il n’applique le droit romain que dans le silence de la
coutume ”, Regnault, p. 83). Which is to say that it was but one element in
Montesquieu’s “professional” training – but the comparison of common and Roman
law, and the exploration of the Corpus juris civilis
itself (a compilation of Roman law made at the order of Justinian, consisting of
three parts: Digest, Code, and Institutes) constituted much more than a technical
study.

3Montesquieu utilized one of numerous commented editions based on a text of
Gothofredus (Godefroy), one of the great specialists of humanist juridical
science (one of these editions, dated from 1612, was at La Brède: Catalogue, no. 705). The commentators (Dumoulin, Mornac,
Ferrière, this last one more recent) play an important role: it is often to
their interpretations that the remarks in the Collectio
juris refer, as well as to eminent jurists like Cujas and Domat. The
first three volumes contain notes and commentaries on the fifty books of the Digest, the next three on the twelve books of the Code (in a particularly detailed manner), as well as on
forty-seven of the 168 Novelles (the absence of the Institutes should be noted); finally they present several
contemporary lawsuits, from the jurisdiction of the Paris parlement: “Croisat v.
Hori” (ca. 1705); “La Cour du Bois v. Vauvré” (1711); “the heirs of Pierre de …
v. d’Authun and de La Baume”; “Nicolaï v. Nicolaï” (1710-1712); “Binet agaist
Louis de ...”; the Duc de Sully, marquis de Rosny, v. one Pierre ...” (1711);
“the archbishop of Reims v. the monks of Saint-Rémi de Reims” (1711); “Serre v.
Élisabeth de La Prairie” (1711); anonymous, on a bequest to a daughter who
entered a convent; several suits judged in Bordeaux between 1716 and 1721, when
Montesquieu was sitting there, first as counselor, then as président à mortier. Notes on the common law of Britanny, on the
“legal maxims” (maximes de droit) of the advocate-general
Joly de Fleury, and various other texts were to be added. His annotation
consists in citing, summarizing and commenting upon the source text, in Latin
and in French, most often aided by the commentaries he had before him. What is
more personal in this ensemble is the choice he makes of the extracts he
comments upon. It is by following this path that we can hope to understand how
Montesquieu trained himself by reading law books, by their interpretation;
without this apprenticeship, his interest in French common law and the evolution
of law proper to each nation, such as they appear in the final books of L’Esprit des lois, would doubtless not have been the
same. Finally, this intimate knowledge of Roman law, collected when it was
constituted as a corpus and renewed itself in
Constantinople in the Eastern Empire of the sixth century, is doubtless not
foreign to the severity with which he judged the man who had played such an
important role, Justinian I: as compiler and as legislator, this Christian
emperor, who did not grasp the spirit of law or that of his people and thought
of nothing but his own interests, was the very example of what ought not to be
done.

4Finally, since the Persian Letters appeared as the
counterpoint or even the antidote to the dryness of the Collectio juris, let us return to them:
Who can think that a kingdom which is the oldest and most
powerful in Europe should have been governed for over ten centuries by laws that
were not made for it? If the French had been conquered, this would not be
difficult to understand; but they are the conquerors.
They abandoned the ancient laws made by their first kings in
general assemblies of the nation; and what is most singular about that is that
the Roman laws which they adopted instead were in part made and in part drafted
by emperors who were contemporaries of their legislators. […]
It is true that quite recently they have written down some
statutes of cities and provinces, but they are almost all taken from Roman
law.
This abundance of laws adopted, and so to speak naturalized, is
so great that it overwhelms both justice and judges. But these volumes of laws
are nothing in comparison to the frightful army of glossers, commentators, and
compilers, men as weak in the unsoundness of their minds as they are strong by
their prodigious numbers.
That is not all. These foreign laws have introduced formalities
that are a disgrace to human reason. It would be rather difficult to decide
whether the form has become more pernicious when it entered into jurisprudence,
or when it ensconced itself in medicine; whether it has caused more damage under
the robe of a jurist than under the physician’s broad hat; and whether it has
ruined more people in the former than it has killed in the latter. (LP, 97 [100]).Qui peut penser qu'un royaume, le plus ancien et le plus puissant
de l'Europe, soit gouverné depuis plus de dix siècles par des lois qui ne sont
pas faites pour lui ? Si les Français avaient été conquis, ceci ne serait
pas difficile à comprendre ; mais ils sont les conquérants.Ils ont
abandonné les lois anciennes faites par leurs premiers rois dans les assemblées
generales de la nation ; et ce qu’il y a de singulier, c’est que les lois
romaines qu’ils ont prises à la place étaient en partie faites et en partie
rédigées par des empereurs contemporains de leurs législateurs.[…] Il est
vrai que dans les derniers temps on a rédigé par écrit quelques statuts des
villes et des provinces ; mais ils sont presque tous pris du droit romain.
Cette abondance de lois adoptées et, pour ainsi dire,
naturalisées, est si grande qu'elle accable également la justice et les juges.
Mais ces volumes de lois ne sont rien en comparaison de cette armée effoyable de
glossateurs, de commentateurs, de compilateurs : gens aussi faibles par le
peu de justesse de leur esprit, qu'ils sont forts par leur nombre
prodigieux.Ce n’est pas tout. Ces lois étrangères ont introduit des
formalités qui sont la honte de la raison humaine. Il serait assez difficile de
décider si la forme s’est rendue plus pernicieuse lorsqu’elle est entrée dans la
jurisprudence ou lorsqu’elle s’est logée dans la médecine ; si elle a fait
plus de ravages sous la robe d’un jurisconsulte que sous le large chapeau d’un
médecin ; et si dans l’une elle a plus ruiné de gens qu’elle n’en a tué
dans l’autre.

5These excessively harsh judgments for what was in fact to constitute the object
of study for Montesquieu’s entire life perhaps offer ultimately the best
confirmation of the testimony of Guasco. From the Collectio
juris also come the spirit of law for which he was training himself as
well as the Persian Letters, which offer their diversion
and satire.